Legal Commentary

Dan Frazier runs a company called Lifeweaver, which sells t-shirts, bumper stickers, and other items bearing liberal messages. The company is best-known for t-shirts with the message "Bush Lied" on the front and "They Died" on the back, superimposed over a white-on-black listing of the names of the 4000+ U.S. servicemen killed in Iraq. This particular shirt has prompted legislation in a few states banning the use of soldiers' names for profit without prior consent of the soldier's families. Eugene Volokh argued last year that the laws were unconstitutional, as did Radley Balko at Reason. The Arizona law was enjoined from application last fall.

In April, the parents of one slain soldier sued for intentional infliction of emotional distress. Last week, they amended their complaint to make it a class action on behalf of the families of all 4000+ servicemen, seeking more than $ 40 billion in compensatory and punitive damages.

I will write more this week about the First Amendment merits of the lawsuit. For now, I want to focus on the following in the Amended Complaint:

And, as your plaintiffs have averred in their original Complaint, the gravamen of their lawsuit is that DEFENDANTS, JOINTLY AND SEVERALLY, ARE MAKING A PROFIT OFF THE SALE OF THESE ITEMS WHICH DISPLAY THE NAMES OF THEIR DEAD RELATIVES WITHOUT EITHER (1) PERMISSION, OR (2) IF OUR COURTS DECIDE THAT OBTAINING PERMISSION, EVEN FOR A COMMERCIAL VENTURE SUCH AS THIS, WOULD CHILL FIRST AMENDMENT RIGHTS, SHARING IN THE PROFITS OF THE VENTURE WITH THE HEIRS OF THE SOLDIERS WHOSE NAMES ARE BEING USED WITHOUT THEIR PERMISSION! Most respectfully, this is a concept that even a mentally-challenged monkey could grasp, but, apparently, defendants cannot?or, more likely, refuse--to do so, for as defendant, Fraser, stated recently to the Associated Press, he is ?not worried? about the outcome of this litigation.

First, does the plaintiffs' lawyer really believe that putting "most respectfully" softens the obnoxious statement that follows? And "most respectfully" to whom--the judge who is reading the complaint (which is usually when you would use such a preface) or the defendant whom he is likening to a mentally challenged monkey? Second, why would a lawyer think he could gain anything from putting something like this in the complaint? Does he think this is going to play well with the judge, who really is the only one who will see or use the complaint? Perhaps this is an example of pleading-as-public-relations, with lawyers using Complaints to sell the case to the public. But plaintiffs typically do this by telling a sympathetic story with great and exacting detail of the defendant's misdeeds, not by making personal attacks on the defendant. Third, where did he get "mentally challenged monkey" from? It is not a common analogy or image, nor is it particularly evocative. If you are going to use rhetorical flourishes or humor, at least make them good ones, not something ham-handed and juvenile. Fourth, isn't this exactly what a Fed. R. Civ. P. 12(f) Motion to Strike is for--getting "immaterial [or] impertinent" matter out of the pleadings. Saying the defendant does not grasp a concept that a mentally challenged monkey could grasp sounds like impertinent matter. Especially when what the lawyer is attacking the defendant about is a media statement of confidence in his First-Amendment defense--and, as I will explain later this week, Frazier actually is right about his First Amendment defense.

Why do lawyers think they gain anything from doing this?